The question of housing, land and property (HLP) restitution has received increased attention over the past several years throughout Myanmar as the country continues to consolidate recent democratic gains and political reforms. This paper has been prepared in the spirit of paragraph 80 of the 2016 National Land Use Policy which asserts that: “The following priorities shall be carried out when implementing research initiatives, capacity building activities, educational programs and pilot projects: ...(n) Conduct research on best procedures for restitution of rights to land and housing of individuals, households and communities that had to abandon the area where they previously resided due to illegal land confiscation, civil war, natural disasters or other causes.” Both Displacement Solutions and the Norwegian Refugee Council are hopeful that the research contained in the present report is useful to the government in developing further initiatives on restitution for everyone in the country with an outstanding restitution claim. Several governmental bodies have been established since the outset of the political reform process to address some of the outstanding restitution claims based on land confiscation, various ethnic actors have adopted policies noting the central importance of restitution within land policies and the ongoing peace process, and increasingly sophisticated views have been put forth by various civil society organisations and displaced populations themselves on this complex question, both within the context of conflict-induced, as well as other forms of forced displacement and land acquisition. Significantly, as many as 400,000 acres of formerly confiscated land has been restituted to legitimate rights-holders over the past several years, and there is a general sense in many quarters that now is the time to make the principle of restitution a reality for everyone with a valid claim, but who have not yet been able to return to and reclaim their homes and lands.
Restitution, which for the purposes of this report refers to returning a situation to what it once was, through restoring rights over a certain piece of land or a home (immovable properties) to those with recognized formal and/or customary rights over it, is now a common feature of the political fabric of countries emerging from conflict, undemocratic periods of governance and shifts in the political paradigm. As valued and central as the restitution process is, however, to the construction of societies grounded in the rule of law and equal protection under the law, the path leading towards restitution can also be a highly complex, sensitive, and challenging process notwithstanding how such land dispossession originally took place and the circumstances in which this occurred. Given the large number of people in Myanmar who are seeking or who will seek to exercise their restitution rights in the context of eventual return to their places of habitual residence and the highly complicated nature of many potential restitution claims, it will be vital to generate an improved understanding of the basic principles of restitution; what form a potential restitution law and procedure could foreseeably take in Myanmar; precisely who may have valid restitution claims over which parcels of land; which entities will review such claims and how any such decisions will ultimately be enforced.
All State entities and public officials in Myanmar (including the military) and its various ethnic negotiating partners engaged in the peace process – just as with all countries that have undergone deep political changes in recent decades, including those emerging from lengthy conflicts – need to fully appreciate and comprehend the nature and scale of the restitution issues that have emerged due to practices widely carried out during past decades, how these continue to affect the rights and perspectives of justice of those affected, and the measures that will be required to remedy land-related concerns in a fair and equitable manner that strengthens the foundations for democracy and peace. Resolving displacement, acts of unfair/arbitrary acquisition and occupation of land, addressing the HLP and other human rights of returning refugees and IDPs in areas of return, ensuring livelihood and other economic opportunities and a range of other measures will be required if return and recovery of lost lands is to be sustainable and imbued with a sense of justice. Work towards developing an eventual nationwide restitution programme covering the entire physical territory of Myanmar and involving peace agreements with all ethnic groups should be premised on the basic contention that embracing restitution will ultimately make the whole of Myanmar a better, kinder, wealthier country and an ever improving place for all who dwell there. Pursuing restitution for all is as sure a sign as there could be that all parties are truly interested in securing a lasting and mutually beneficial peace.
Though not always widely understood by the public, Myanmar already has in place some of the key foundational components needed to develop more comprehensive and refined restitution mechanisms. Developing better restitution mechanisms would ensure that every person and community with a restitution claim can have an effective opportunity to have such claims independently and impartially reviewed and verified. The coming period will be vital in generating the political and social support needed for a more effective all-inclusive nationwide restitution process; a process which is a fundamental step towards ever greater democracy, ever greater justice, and ever greater respect for human rights. A society-wide embrace of an improved restitution process can provide an institutional, procedural and legal basis for building bridges between those with legitimate restitution claims, those who may have acquired such homes and lands in the past, and the new government. Indeed, the new government was brought to power on a platform solidly recognizing the rights of all people in Myanmar to live in a country that abides by the rule of law, including international law, and where acts such as land grabbing and the arbitrary expropriation of land without due process are confined to the past. Achieving such an embrace, however, will certainly be challenging, for the stakes are high, the numbers of people involved considerable and the political and social risks very significant.
There may be views in Myanmar that posit the contention that as ideal as the principle of restitution may be, the actual approval of a new restitution law and programme to augment the important but incomplete mechanisms currently in place would simply not be politically possible due to potential opposition by a range of political actors in the country. These actors are most notably private companies, the military (which continues to be guaranteed some 25% seats in the national Parliament) and various ethnic armed groups. However, there are indications of major changes within each of these sectors, many of which are highly amenable to and supportive of the principles associated with restitution. For instance, an important Presidential Directive in 2015 addresses the role of the military in terms of land, outlining the following instructions concerning the Ministry of Defense: (a) Army shall neither lease confiscated land, meant for construction of military posts, for Theesaa farming nor other purpose to gain profits; (b) Army shall take only the area required for security of the military post, office and training activities; and (c) Army shall return the extra lands to the original owners who are demanding their lands through every possible means for which their complaint letters are submitted to all the Regional/State parliaments. These instructions build on evolving sentiments within the military itself exemplified in, for instance, remarks made by the Minister of Defense in 2013 on the important links between the role of the military and its vital role in the process of restitution: “In conclusion, the fundamental duty of Tatmadaw, the military is to protect the nation with the arms. To protect the nation means protecting the lives, homes and properties of our people. Just like protecting with the arms, returning the lands to support the lives of people to be stable and those of farmers to have something to live on is a way of protecting the lives, homes and properties of our people. I would like to express that we will solve the remaining cases, prioritizing the welfare of the people”. Expanding sentiments such as this will greatly enhance the prospects of comprehensive restitution throughout the country. Ethnic Armed Groups have also started exploring the need and viability of restitution processes, with the Karen National Union, for instance, issuing a land policy in 2015 which explicitly does just that. Similarly, many companies currently possessing or controlling land which is potentially subject to valid restitution claims, should note that one of the world’s largest companies, CocaCola, which now operates in Myanmar, has adopted a ‘Zero Tolerance for Land Grabbing Policy’ that sets a standard for other companies to be aware of their responsibilities within the land sector and the vital importance of having clarity about all questions concerning land and HLP rights over it throughout the country.
Should Myanmar expand its already important, albeit nascent and partial, embrace of restitution principles and commit to a comprehensive and nationwide restitution programme enabling everyone with a restitution claim to make one, it will join numerous other countries throughout the world that have undertaken formal restitution programmes over the past 25 years. Countries ranging from Bosnia-Herzegovina to Colombia, Germany to Estonia, Kosovo to El Salvador, Iraq to Georgia, Poland to Hungary, the Czech Republic and many others have all decided that redressing past acts relating to land confiscation was not only the right thing to do, but also the smart thing to do to build peace, reconciliation and to create better conditions for economic development.6 Many major peace agreements concluded over recent decades have also made explicit reference to HLP issues, including restitution, as areas vital for sustainable peace. Where these programmes have been successfully implemented they have formed fundamental steps in the larger quest for political stability and building the foundations of democracy. Indeed, the attributes of a modern, vibrant and prosperous society are all well served by courageous decisions to secure restitution rights to those with valid claims.
Arguably, thus, the restitution journey has commenced in Myanmar, but as far as this process has traversed, there remains a plethora of issues that require clarity and resolution, improvements that need to be made in existing mechanisms, and a strong need for new legislative and procedural tools to be put in place to ensure that everyone in Myanmar with an outstanding restitution claim will have the free, unimpeded and guaranteed right to have such claims considered and resolved. Whatever restitution decisions are ultimately made by the people and authorities in Myanmar, it will be vital that a single, consolidated and legally consistent approach to restitution is taken that applies as much to those who were past victims of land grabbing as it does to those displaced because of conflict, the presence of land mines, ill-conceived development projects and other causes. To be consistent with international standards, the best practice of other States that have engaged in restitution and in the best interests of Myanmar, any restitution process must ensure, at a minimum, that everyone deserves, in accordance with the basic legal principle, an effective remedy for any acts of land confiscation determined by an independent, impartial and fair remedial body and commitments that such confiscation will not be repeated in the future.
This report explores those instances of displacement where those affected are forced to move from their homes and lands due to circumstances beyond their control, in particular cases of armed conflict, massive violence or gross violations of human rights such as arbitrary land confiscation, where legal procedures are not followed, where compensation is not provided and where those forced to flee from their homes assert their claim to repossess them once they feel it is safe and secure enough for them to return. The people of Myanmar have endured many decades of forced displacement and land confiscation. It is through the process of restitution that at least some of the injustices associated with these processes can be reversed and redressed. There is a growing conviction in the country - from the level of communities all the way up to the national government and military - that Myanmar will be a better, more peaceful, unified and compassionate country if restitution demands are met in the near term. Through this report Displacement Solutions and the Norwegian Refugee Council aim to assist this process and provide constructive and informed guidance on how to reach this goal in the best possible manner.